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UK.gov could be left out of EU passenger data scheme

Lords warn of drawback to Whitehall's grasping fingers

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The Government's hard line on the collection and use of information on travellers could isolate it within Europe and leave it with less information than other states, a parliamentary committee has warned.

The House of Lords European Union Committee has said that the UK Government's desire to see passenger name record (PNR) data used for all serious crime and extended beyond just air travel could force it outside an EU-wide agreement on the information.

PNR data is collected by airlines and handed to governments for use at border patrols. Its use has expanded in the wake of terrorist attacks on US and EU civilian targets in recent years.

The European Union proposed last year that greater sharing of this data be undertaken between countries, but the UK has proposed that the framework be greatly expanded to increase the powers of data collection and the number of purposes for which it can be used.

The Lords Committee said that this policy risked undermining its objective of being in control of more information and could force the UK out of the Europe-wide agreement.

"It would be unfortunate not to be part of the EU’s own PNR initiative, and not routinely to receive PNR data from other Member States," said the Committee's report (pdf). "But, at least in the view of the Government, [that would be] less unfortunate than having unacceptable constraints on their own freedom of action."

The Government told the Committee that it believed the EU agreement to be too restrictive. It wants to be able to use PNR data to help to tackle all serious crime and for immigration control, to expand its reach to cover other forms of travel other than air travel, and to allow the gathering of data on flights within the EU and even within the UK.

These uses of the data are barred by restrictions attached to the EU proposal. "The Commission believes that the positive obligations go hand in hand with the limitations and restrictions," said the Committee. "It is likely that many, perhaps most, Member States will take the same view. The Government’s hopes of eliminating or at least reducing the limitations may therefore not come to fruition."

The Government can currently block the proposal because it requires the agreement of all EU member states, but if the Lisbon Treaty is passed then it can be passed by a qualified majority of states.

If it were passed at that stage then the UK would have to opt out of it, which would mean that it could no longer access data collected by other EU member states because data could not pass from countries within the agreement to countries outside it.

"The Government should be aware that, by attempting to extend the purposes beyond what is acceptable to other Member States and to the European Parliament, they may be forced to opt out of the Framework Decision," said the Committee.

"They may then find that, on balance, the ability to use PNR data to assist in the combating of more routine crime, including immigration, revenue and customs offences, is insufficient compensation for an inability to use data collected by other Member States."

The Committee also told the Government that it should not seek to expand the purposes for which the data is used.

"There can be no justification for agreeing legislation which does not set out clearly the purposes for which and the conditions under which the data may be used," it said. "Blanket expressions such as 'organised crime' or 'serious crime' are inadequate. The offences for which PNR data can be used must be defined as clearly as is possible given the differing legal systems involved. If a definition of 'serious crime' is possible for the European Arrest Warrant, appropriate definitions can be found for the Framework Decision."

The Committee said that it would not be possible to extend the collection of PNR to road or rail travel, but that it could be extended to sea travel in due course. It also said that the whole exercise should be underpinned by clear data protection measures.

"We believe that adequate and effective rules on data protection should be contained in the PNR Framework Decision itself, and we urge the Government to support this view in the course of the negotiations," it said.

Copyright © 2008, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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